Brett Kavanaugh’s long paper trail, both as a judge and as a Republican political appointee, gives Democrats a great deal of material to exploit.

Photograph by Chip Somodevilla / Getty

Bad news for Donald Trump has been good news for Brett Kavanaugh. The past several weeks have been among the most tumultuous of Trump’s Presidency—with a widely panned European tour and summit with Vladimir Putin, and a series of embarrassing disclosures from Trump’s onetime lawyer Michael Cohen. The unfolding scandals have had the effect of pushing Kavanaugh, Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court, to an afterthought in news coverage. The near-blackout on Kavanaugh has stalled any political momentum against his nomination. How can Kavanaugh be defeated if no one is paying attention to him? For the judge and putative Justice, no news is good news.

Kavanaugh’s smooth ride so far has raised the question of whether it’s even worthwhile for Democrats and liberals to fight his nomination. Trump selected Kavanaugh from a list of prospective nominees assembled by the right-wing Federalist Society. If the Senate rejected Kavanaugh, the President would surely just turn to the next person on the Federalists’ list, who may be even more conservative than Kavanaugh. In light of that possibility, one theory goes, shouldn’t Democrats surrender and allow Kavanaugh to take his seat on the Court?

Such an approach would be wrong politically and unsound historically. There’s a reason that conservatives talk about their judicial agenda in abstractions rather than in specifics. It’s hard to quarrel with (or even to understand) what they mean when they say that they favor “judicial restraint” or “judges who interpret the law rather than legislate from the bench.” But the practical meaning of those vague terms is actually very clear. It means overturning Roe v. Wade and allowing states to ban abortion. It means interpreting the Affordable Care Act to allow insurance companies to exclude protections for preëxisting conditions. (The Trump Administration is backing a lawsuit to do just that.) Substantial majorities of the public support both Roe v. Wade and the preëxisting-condition protections. During the 2016 campaign, Trump promised that he would appoint Justices who would vote to overturn Roe, and there is every reason to believe that Kavanaugh and Neil Gorsuch, Trump’s first appointee to the Court, would do so—based on their records and on the fact that they were on the Federalist Society’s list. Likewise, Kavanaugh’s approach to the interpretation of statutes suggests that he would rule against mandatory coverage for preëxisting conditions. If framed in the clearest terms, then, the politics of the Kavanaugh nomination favor rejection, not confirmation.

And what of the prospect of Trump naming an even more extreme nominee if Kavanaugh is rejected? History offers some lessons on this subject. In 1969, President Richard Nixon named Clement Haynsworth to succeed Abe Fortas, a crusading liberal, after Fortas resigned from the Court in a corruption scandal. Haynsworth was fairly moderate in his views, but his record on labor and civil rights was deemed insufficiently progressive, and the Senate voted him down, fifty-five to forty-five. Enraged by the rejection, Nixon explicitly sought to punish liberals by naming G. Harrold Carswell, who was noticeably more conservative than Haynsworth, to the seat. But a majority of the Senate kept up the fight and defeated Carswell, too, by a vote of fifty-one to forty-five. (The Carswell battle is best remembered for a dubious endorsement that the judge received from Senator Roman Hruska, a Republican of Nebraska: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They’re entitled to a little representation, aren’t they?” The late Richard Harris, a writer for The New Yorker, told the Carswell story well in his book “Decision,” from 1971.) In the end, Nixon nominated Harry A. Blackmun to fill the seat, and he served as a moderate for more than two decades. He was also, of course, the author of the majority opinion in Roe v. Wade, in 1973.

The same story—a rejection of a conservative leading to an appointment of a moderate—took place in 1987, when Ronald Reagan nominated Robert Bork to succeed the retiring Lewis Powell on the Court. Bork had a distinguished record as an academic and an appellate judge, but his views were extreme—on some of the same issues that Kavanaugh’s are, such as the right to privacy and the scope of civil-rights laws. As a result, the Senate voted Bork down, fifty-eight to forty-two. (In later years, conservatives turned Bork’s name into a verb, to identify victims of an unfair confirmation process. In fact, Bork’s record and subsequent writings showed that he was just what his critics said he was: a thoroughgoing reactionary.)

Reagan—again, in part, to punish liberals—nominated a younger conservative, Douglas H. Ginsburg, to fill the seat. But that nomination blew up when Ginsburg admitted that he had used marijuana when he was an assistant law professor at Harvard, and Reagan eventually surrendered to political reality and nominated someone more moderate: Anthony Kennedy.

At some point in the process, all four of these nominees—Haynsworth, Carswell, Bork, and Ginsburg—seemed like shoo-ins for confirmation, much as Kavanaugh does today. And yet they were all defeated. And the Justices who took their places were closer to the judicial and political mainstream. To be sure, the analogies to Kavanaugh’s case can be overdrawn. The most obvious difference is that Democrats controlled the Senate when Nixon and Reagan made their nominations. And Nixon and Reagan were less right-wing than Trump has been, at least when it comes to judicial nominations. Trump and his allies can be expected to fight furiously for Kavanaugh precisely because Blackmun and Kennedy turned out to be more moderate than many anticipated. Still, the current Republican margin in the Senate (owing to John McCain’s absence) is just a single vote, and Kavanaugh’s long paper trail, both as a judge and as a Republican political appointee, gives Democrats a great deal of material to exploit. Most of all, they need to remember that fighting Supreme Court nominees, even against formidable odds, can succeed—and produce a better Court than anyone might have expected.